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DIVORCE FOR NON MUSLIM IN MALAYSIA (TYPE OF DIVORCE (Before/within 2…
DIVORCE FOR NON MUSLIM
IN MALAYSIA
DEFINITION
The legal termination of a marriage and the obligation created by marriage, through judicial proceedings other than the decree of nullity, presumption of death and judicial separation
TYPE OF DIVORCE (Before/within 2 years)
SECTION 50
No divorce before two years except the case falls under exceptional circumstances or hard ship.
RATIONALE (Fisher vs Fisher)
To deter people from rushing into an ill-advised marriage
To prevent them from rushing out of marriage so soon as they discovered that their marriage was not as what they expected
Exceptional hardship or circumstances normally refers to action or behavior of the respondent towards the petitioner whether directly or indirectly effect the petitioner whether physically, psychologically or emotionally.
SECTION 51 (LRA)
Occur when one party to a marriage has converted to Islam
3 situations:
• Either party may petition for divorce under section 51
• Either party may petition for divorce under section 53 (IBM)
• Both parties may petition for a divorce under section 52 (mutual consent)
Effect of conversion to Islam
Status of marriage
Custody of children
Ancillary reliefs
51(2) - ancillary matters
Upon dissolving the marriage
At any time
TYPE OF DIVORCE (Presumption of death)
SECTION 63
Any married person who alleges on reasonable grounds that the other party to the marriage is dead may present a petition to the court to have it presumed that the other party is dead and to have the marriage dissolved
Court may grant a decree nisi of presumption of death and of divorce
TYPE OF DIVORCE (After 2 years)
SECTION 53,54
Either party to a marriage may petition for divorce on the ground that the marriage is broken down
Proof of breakdown (Section 54)
Respondent has deserted the petitioner for a continuous period of at least 2 years immediately preceeding the presenration of petition
Parties of marriage have lived apart for a continuous period of at least 2 years
Respondent commited adultery & the petioner finds it intolerable to live with the respondent
SECTION 52
If both parties mutually agree that their marriage should be dissolved, they may after expiration of 2 years from the date of their marriage present a joint petition accordingly.